S. GOPALASWAMI Vs. A.B.M. NAGAMIAH

JUDGEMENT

(1.) The defendant is the appellant. The suit was filed by the respondents herein for recovery of possession of 1 acre and 12,837 sq. feet of land comprised in S.No. 1013/2 with trees, pond, well, etc., and for damages for use and occupation. The damages were claimed at Rs. l,500/ - per year for three years prior to the suit and at the same rate from the date of the suit till the date of delivery. The plaintiffs' case was that the suit properties were leased to the defendant for a long time and the defendant was executing lease deeds and the last of such lease deeds was executed on 2nd December 1952. That deed was for a year and after that deed, the defendant was continuing to be the lessee under the same terms and conditions and was paying paghuthi. The further case of the plaintiffs was that the defendant was indifferent in paying the paghuthi and therefore, by a notice dated 27th June 1966 they culled upon the defendant to pay the arrears and vacate and surrender possession after the expiry of 15 days from receipt of the notice. The defendant had not vacated the same not paid the rent. Accordingly, the suit has been filed. The main defence was that the defendant is a cultivating tenant entitled to the protection of the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act 25 of 1955) (hereinafter called the Act). The defendant also contended that there was no valid and proper notice of termination of the tenancy and that he continues to be still a statutory tenant. He further contended that he was liable to pay only at the rate of Rs. 60/ - per annum as rent for the suit properties and that he was not liable to pay any damages, much less at the rate of Rs. 1,500/ - per annum. He offered to pay Rs. 180/ - for the three years prior to the suit. On the ground that he is a cultivating tenant entitled to the benefits of the Tamil Nadu Act 25 of 1955, the defendant also pleaded that the Civil Court had no jurisdiction to entertain the suit for eviction.

(2.) The trial court held that the suit is maintainable for eviction. The trial court considered the lease deed and thought that it a consists of a lease of three portions, viz., (1) a house, (2) vacant land, and (3) cocoanut garden. In respect of the house and cocoanut garden, the trial court held that the defendant was not a cultivating tenant and that in respect of the vacant portion, the defendant was a cultivating tenant. Accordingly, the trial court decreed the suit for possession of the house and the cocoanut garden and dismissed the suit as far as the vacant site is concerned. The trial court also granted damages in the sum of Rs. 2,250/ - for three years prior to suit as against the claim of Rs. 4,500 -00, The defendant preferred an appeal before the learned District Judge of East Thanjavur. The plaintiffs also preferred cross -objections. The cross -objections related to that portion of the decree where the suit was dismissed, in relation to the vacant land and also the rejection of the portion of the claim of damages The learned District Judge held that the lease was of the usufructs of the trees, but so far as the land is concerned, the defendant was only a licensee and that therefore, the plaintiffs are entitled to eviction from the entirety of the properties. But the lower appellate court confirmed the damages given at the rate of Rs. 750/ - per year for the period of three years prior to the suit. It is against this judgment of the lower appellate courts this second appeal has been preferred.

(3.) The first question that arises for consideration is whether the construction placed by the learned District Judge on the lease deed, Ex. A -4, dated 2nd December 1952 executed by the appellant in favour of the plaintiffs' father was correct, and the finding that the defendant was not a cultivating tenant in relation to that property has to be accepted?